Volume 2 REVISION OF THE ARTICLES OF WAR 1912-1920 (1n two volumes) Hearing. Subcommittee of Committee on Military Affalr. s. Senate 66th Congress, 1st sess. on S.64. A bill to establish military justice. 1919 House Report 940 - 66th Congress, 2d sess. Hearing. Special subcommittee of Committee , on Military Affairs. House. 66th Congress, 2d sess. Play 4, 1920 The Articles of War. Approved June 4, 1920 HEARINGS I:IiIWR13 TIIE tF SUBCOMMITTEE OF THE COMMITTEE ON MILIFARY AFFAIRS UNITED STATES SENATE SIXTY-SIXTH CONGRESS FIRST SESSION ON A 1311.1, TO ESTABLISH MILITARY JUSTICE PART 1 -. - 1'1-il~tetlfor tl~euse of the Co~ninitteeon Military Affairs 1 WARHISGTON GOVERKJIENT PRINTIXG OFFIC~ 1910 ESTABLISHMEN T OF MILITARY JUSTICE - ___-.- HEARINGS l!l:l'ORB: THE SUBCOMMITTEE OF THE COMMITTEE ON MILITARY AFFAIRS UNITED STATES SENATB SIXTY-SIXTH CONGRESS FIRST SESSION ON S. 64 A HILL TO ESTABLISH MILITARY JUSTICE PART 2 I'ril~ted for the use of the Committee on Military Affairs WASH1SGTO;"i GOVERNMENT PRINTING OFFICE 1919 ESTABLTSHNEbT OF MTLTTARY JUSTICE-PROPOSED ANEhbhlF,I\'l' OF THE ARTICLES OF WAR. SATURDAY, AUGUST 30, 1919. The subcommittee niet, pursuant to acljo~~rnment,in the room of the Committee on Appropriations in the Capitol, at 10 o'cloclr a. m., Senator Irvine L. Lenroot presiding. Present : Senators Lenroot (acting chairman) and Chamberlain. STATEMENT OF MR. SAMUEL T. ANSELL--Resumed. Senator LENROOT.I do not remember just what point you hat1 reached at the last session, General, do you? Mr. ANSELL.If the committee please, yesterday I had said that Great Britain had recognized the necessity of at least a partial civil control, in the last analysis, over courts-martial. I had shown that their law requires a law officer with the powers of a judge to sit with each general court-martial, though, as I said-ancl ought to have said, in fairness-those powers, like so many things British, were not well defined and fixecl. Probably, cle jure they are advisory; de facto, they are controlling. That with each field general court-martial, which is their agency for enforcing discipline when they are in actual campaign, so far as enlisted men are concerned, as a rule, the law does not require this judge to sit with the court-martial ; but by regulations it is required. and it has worked out to the absolute satisfaction of all, the only complaint being it should go farther and be fixecl bg statute. I had shown that the head of the Judge Advocate General's De- partment, who is the chief of the bureau of military justice there, i~ a civilian, had at one time been a inember of the Government, still has a close relationship both to Crown and Parliament, and, most significant of all, he is not subject to any military supervision what- RVPP- I had also adverted to the fact, previously, that there was far greater opportunity there for the civil coul-ts of the Kingdom to review the judgments of courts-martial than here, the sole remedy here being by way of the writ of habeas corpus; except, of course, in a suit for trespass, which, as you know, seldom or never is re- 132265-1%--PT 2-15 273 ESTABLISHMENT OF MILITARY JUSTICE. 275 sorted to, for the very obvions reason, I suppose, that you had to tionship-the disciplinary relationship-betmeen the officers and men prove that a meinber of the court has maliciously and flagrantly really might be improved upoil. violated his duty in order to clo injury to the accused. Certainly The French lake the discipline of their men much to heart. Justice that would have to be proved before clamage could be recovered. to the enlisted man is very much on their conscience, and the first Such actions are not brought here. thing that a colonel of a rcgiinerit does n hen he comes to his orderly In France it is significant likewise that, military as that people is, room in the morning is to look over the delinquency book and to go the judge advocate general of the army there is a civilian, and a most into it with the g!cntest of care. A man may not be court-martialed distinguished one. In my travels there I met no lawyer ~vhoim- there until a quasl-judicial officer does loclk over the charges, and does pressed me more than he. look over the evidence to see uhetller there is a prima facie case; Senator CIIAB~~ERLAIN.What is his title ? and such oficer is not under the control of military authority either. Mr. ANSELL.Unclersccretary of State for Military Justice, with a And after a mail is tried, as I have inclicatecl, he gets this review. It scat in Parliament. should be concedecl that French courts-martial, like French civil In the French Ariny in time of peace there is a very large appel- courts, clo not adhcre to the teclznical rules of evidence, for instance, late systcm. Many of their cases can go to the supreme court of and other rules of procedcre, as we do. Ihnce, the Court of Cassation, of Paris; and in time of peace there In Italy there is established the system of appeals, it seems to me, is a court of military apl~eals.as well; and in time of war the law on a much more elaborate scale than in any other country. It seemed pro\ ides for a cc urt of appeali with each army, but, as I unclerstood to me too elalsorate, indeed. their practice, perhaps a court of appeals was not maintained at the I discoyered in Paris a bcok which I regarded as very valuable. It lzeaclquarters of each army, but rather, administratively, at some cen- was a rcp0r.t made bv a Norwegian jnclge advocate, sent by his Gov- tral point, as at Paris, where it could take care of more than one c~nmentto inyestigate the systeiiis of military justice obtaining in all jurisdiction. the European countries; and later he extended that to our own coun- Senator LEXROOT.But is maintained? trv and some of the South American countries. It is the only- compre-- Mr. AXSELL.But is maintained. That is the point. My recollec- hksive study, so far as I know, that has ever been made of such a tion of it is that in time of war they may have, ancl do have usually, thing. It is old, lzovever. But after I got back home I found there on their court of military appeals men who are commissioned in the was one copy of that book in this count~.y,and I got it from Harvard army; that is, armv men. Of course there the distinction between Unirersity. I hare let another officer have it temporarily, and have the professional soldier and the citizen soldier is not so marlcecl as it is not been able to get it back, but I wanted to assure the committee that here. If there is one thing more impressive about the French Army I have read the report of that officer, and that report reveals clearly than another, it is the unity observable in their military establish-' that this system of military appeals is established throughout Europe, meat, a unity which we do not have here, but which I hope that me and that the system of having a specially qunlified law officer sitting may some day have. with each general court-martial is e~tablishedthroughol~t Europe. Senator LEXROOT.YOU mean it is more democratic throughout? That oficer comments on the fact that Spain, Prussia, Russia, Eng- Mr. ANSELL.Yes. Senator, I went to France, of course, with the land, and the United States are the ones who do not have it. There, ntmnst svmpathy and admiration for the French people, but not so I believe. is some sort of review in Prussia-was at that tin!e- much with the idea that the French were really a democratic people. that I am not familiar with at all. But even in Spain there is a Whatever may be said for any other institution, that institution more thorough review by the judge advocate general than there which is usually in all nations least democratic was in the case of is here; and most especially does he comment on the fact that the the French most democratic; that is, their army. I said in my re- British system and the American system make no provision for an port, and I repeat, that whenever we shall change, let us not change pnthoritatire review whatever. So that this talk about a reviewing toward the British or what might be called the northern nations' body being a new thing, detrin:ental to discipline, is disproved by view of maintaining discipline, because I think probably this system the fact that it is an establishecl institution in Europe, where armies, whereby discipline is maintained by the great gulf between enlisted of course, are far more eignificmt things in government and closer man and officer by erecting the officer as a sacresanct thing far above to the people than they are here. him belongs rather to the northern races-to ourselves, to the Britieh, Senator CI-IA~~RLAIS.May I ask you if, in your risit to France, and to others. Let us, if we can, incline to the French system, where, yon conipared the maximum penalties imposed in the French arnlp without loss of dignity and without any infringement of proper pre- with the inaxiinum penalties imposed in the American Army? rogative.;, the rclationship between officer and enlisted man is a re- Mr.-~ ~ ANSELL.Yes, Senator; ancl the French punishments are com- 1narli.able one, a most helpful one, and causes, I think, a Frenchman paratively very light, indeed.